MABIBO appeals against Fair competition’s judgment

[Rutashubanyuma]

By FAUSTINE KAPAMA, 26th December 2010 @ 11:00, Total Comments: 0, Hits: 138

A LEGAL wrangle over exclusive importation and distribution of Heineken Beer in Tanzania took a new twist last week when Mabibo Beer Wines & Spirits Ltd (MABIBO) lodged an appeal to the Fair Competition Tribunal challenging all the decisions of the Fair Competition Commission (FCC) delivered on November 18, 2010.

In the appeal also filed against Lucas Pius Mallya trading as Baraka Stores who is a Principal Respondent in the case and Commissioner for Customs and Excise, a necessary Party, MABIBO has advanced 42 grounds to challenge the FCC decisions.

MABIBO is claiming in its memorandum of appeal that it was granted exclusive Heineken importation and distribution rights a long time ago. After registering the exclusive Heineken Trade Mark licence under the Tanzania Trade and Service Marks Act, the Commissioner for Customs and Excise of the Tanzania Revenue Authority published Notice in July 2004 as a subsidiary legislation restricting importation of Heineken to prior written consent by MABIBO.

MABIBO is questioning why Mallya is using a trade name of BARAKA STORE which does not belong to him instead of using his own trade name of JALUMA STORES. The company is asking the Tribunal to quash and set aside the Commission’s decision and rule that it had jurisdiction to grant all and especially the declaratory orders sought by Mabibo in the counter claim.

The commission composed of Hon. Nikubuka Shimwela, (Chairman) and three other members dismissed the Counter Claim by Mabibo which had alleged unfair competition, conduct of tax evasions committed by businessman Lucas Mallya, offending the Fair Competition Act (FCA) and infringing MABIBO’s Statutory Exclusive Heineken Importation and distribution rights.

In the counter claim, MABIBO had sought for declaration that tax evasion negatively affects the welfare of the people of Tanzania as a whole and amounts to unfair Competition throughout Tanzania and that it is an offence under the Fair Competition Act No. 8 of 2003.

According to Mabibo, BARAKA STORES was engaged in unfair trade practices damaging the integrity of the premium Heineken Beer Brand in Tanzania market and all the proceedings in the complaint lodged by the businessman Pius Mallya at the FCC be stayed pending determination of the Appeal.

Furthermore, the owners of the Heineken Beer Brand in Tanzania be given an opportunity to lead evidence that they have all along intended to build a local Heineken Brewery in Tanzania for the whole East African Market but they are being discouraged by unfair Competition and un conscionable conducts from the like of BARAKA STORES.

In the appeal, MABIBO contends that the Commission erred in law and in fact in dismissing the counter claims without carrying out any investigation as required by the Rules and erred by adopting the adversarial procedure in conducting the hearing of the counter claims instead of adopting the inquisitorial procedure.

It also stated that the Commission erred in law and in fact in not holding that it had no jurisdiction to entertain the complainant's prayer for being granted the right of importation and trading of Heineken beer in Tanzania without following the applicable general policies and procedures prescribed by MABIBO.

According to MABIBO, the Commission also erred in law and in fact in failing to use the complainant's own evidence that he was not only infringing the exclusive rights of the appellant but was also evading payment of proper and correct taxes to the state thereby negatively affecting the welfare of the people and the economy of Tanzania as a whole.

Furthermore, it stated that the Commission erred in law and in fact in holding that it has no jurisdiction to declare that tax evasion negatively affects the welfare of the people of Tanzania and the economy as a whole and amounts to unfair competition and that it is an offence under the Fair Competition Act No. 8 of 2003.

Finally the Memorandum of Appeal states that the Commission made serious errors in law and in fact in failing to apply fully the laws of Tanzania to include published written policies of any Government Entity and notifications made pursuant thereto.

 

[Rutashubanyuma]

In the counter claim, MABIBO had sought for declaration that tax evasion negatively affects the welfare of the people of Tanzania as a whole and amounts to unfair Competition throughout Tanzania and that it is an offence under the Fair Competition Act No. 8 of 2003.

TRA wako wapi kuijenga hii hoja?

 

[Rutashubanyuma]

According to Mabibo, BARAKA STORES was engaged in unfair trade practices damaging the integrity of the premium Heineken Beer Brand in Tanzania market and all the proceedings in the complaint lodged by the businessman Pius Mallya at the FCC be stayed pending determination of the Appeal.

Furthermore, the owners of the Heineken Beer Brand in Tanzania be given an opportunity to lead evidence that they have all along intended to build a local Heineken Brewery in Tanzania for the whole East African Market but they are being discouraged by unfair Competition and un conscionable conducts from the like of BARAKA STORES.

Wanachotaka MABIBO siyo monopoly kweli kwa kuua ushindani hapa nchini na mlaji hatanufaika bei zitakapoanza kupanda..............

 

[Rutashubanyuma]

It also stated that the Commission erred in law and in fact in not holding that it had no jurisdiction to entertain the complainant's prayer for being granted the right of importation and trading of Heineken beer in Tanzania without following the applicable general policies and procedures prescribed by MABIBO.

If what MABIBO is alleging is true the COMMISSION had no business yo assign the complainant the right for importation of the said beer since there is a statutory body charged with that responsibility........................

But if you read between the lines you will see that Mallya has all the rights conferred by the statutory body as otherwise how comes MABIBO is a defendant and not the Plaintiffs in the saga?

 

[Rutashubanyuma]

Furthermore, it stated that the Commission erred in law and in fact in holding that it has no jurisdiction to declare that tax evasion negatively affects the welfare of the people of Tanzania and the economy as a whole and amounts to unfair competition and that it is an offence under the Fair Competition Act No. 8 of 2003.

Without having TRA being made part to the suit how can the Courts made such hyperbolic claims concerning tax evasions and its impacts on Tanzanian people....it will amount to fraudulent speculation.................and the Courts are not that stupid to dig themselves into a ditch................